Based on years of interviews, “Views From the Bench” brings together the thoughts of the judiciary in a way never done before. It’s a must read for anyone in litigation, eDiscovery, and the legal profession. We’ve excerpted the beginning of that conversation below and invite you to download the whole anthology, for free, here.

Views From the Bench: Part I: The Role of eDiscovery in Today’s Court System

How does the cost of discovery impact litigants’ access to justice?

Hon. John M. Facciola: It’s an extraordinary challenge. Probably no greater challenge has been faced in terms of administration of justice in this country. The costs of discovery may, in the long run, drive an entire economic class out of the federal court for lack of means to engage. It’s all well and good when monumental companies go after each other with their extraordinary resources, but if we get use to those big bills as being typical of what can be expected in cases involving electronic discovery, obviously those costs will overwhelm smaller cases involving smaller entities.

“The costs of discovery may, in the long run, drive an entire economic class out of the federal court for lack of means to engage.”

Certainly I am in despair over how the ordinary lawsuit between a single plaintiff and a moderate-sized corporation can possibly go forward unless we figure out a way to get the costs of discovery down and make them more manageable. The solutions are ahead of us.

Hon. Mark W. Bennett: Well, the implication for access to justice is that parties with meritorious claims have a harder time getting their cases to trial because of the way we’ve morphed from a trial lawyer approach, where the trial lawyers go to the heart of the matter, don’t take so many unnecessary depositions, don’t engage in unnecessary discovery—just go to the heart of the matter and either settle or go to trial. But with the system we have now, once you get through discovery, nobody can afford to go to trial.

Hon. Kristen L. Mix: As a system, I think the federal courts are aware that there are vast economic disparities between parties—that federal court is much more affordable for some parties than for others. And some programs and policies have been set in place to try to address those disparities.

How effective the programs and policies are, I can’t really say.

The last thing we want to do is make federal court a court for only economically elite litigants. That is not the way it should be. Access to justice is critically important to everyone in our society. It’s important for the rule of law and it’s important, in my view, for overall government in a democracy.

Hon. David G. Campbell: I don’t think I would call it a “playground for the rich,” but I absolutely agree that too many people cannot afford to litigate in federal court. I do think the cost of federal litigation makes it unavailable to the average citizen. And I see many of them who are representing themselves struggling to handle a case because they can’t get a lawyer to take it because it doesn’t have enough money at stake. I think that’s a problem.

That’s one of the problems we talked about at the 2010 conference [on civil litigation hosted by Duke Law School]. Part of our intent in putting the proportionality idea into the new rules and trying to get judges to actively manage cases more efficiently from the beginning, and we hope cutting down the side litigation over the loss of ESI, is to reign in the cost of discovery.

Facciola: There’s a wonderful recent decision by Judge Douglas Miller in the Eastern District of Virginia in the Federico case, where he was confronted by a group of plaintiffs who were living in military housing in Norfolk and discovered, they claimed, mold in their homes. They sued collectively and the issue arose over whether or not they had been making Facebook entries about this problem, and then the question of discovery of these posts arose.

When the dust had settled, the [ESI] expert had charged $20,000 and the attorneys fees were $66,000, so from the get go, we are $86,000 in the hole looking for Facebook entries. Will they be useful? Will they make any difference in this lawsuit? God only knows. But those are the problems I’m most worried about. I really believe that people should be able to get a prompt, and efficient and just determination of their disputes without going into bankruptcy as a condition, and facing a situation where they simply run out of money before they can complete the prosecution of the case.

Bennett: I’ve written a few law review articles that mention the rise of the “litigation industry” and that’s what it’s all about, you know? It’s all about abusive discovery, ridiculous amounts of discovery—99 percent of which never winds up in trial.

Hon. Laurel Beeler: I do think that it’s always important to manage discovery toward the dollar value that’s at stake in the litigation. What’s reasonable eDiscovery in the context of patent litigation with core technology is different than what might be relevant for an employment case—it’s still consequential to the parties, but with a relatively low dollar value for the ordinary spend of federal litigation.

Hon. David J. Waxse: With the hourly billing system, and I have put this in some articles, there is a conflict with the client because the lawyers’ goal is to get as many clients and make as much money as they can and the courts’ goal is to get to just, speedy and inexpensive [resolutions]. Our culture needs a lot of change in that overall view of litigation. Discovery plays a role in it, it just doesn’t have to be the major role.

“Our culture needs a lot of change in that overall view of litigation.”

I don’t know [if it happens] a lot, but it certainly happens that people get priced out of federal court litigation. I think if we focused on these suggested solutions that are now supposedly in place with the revised discovery rules, I think we could get a handle on this problem.

Hon. Andrew J. Peck: Small companies and individuals have to think seriously about bringing a lawsuit because of the cost of litigation.

On the other hand, I don’t know if it is, in fact I would think it is not, any cheaper to do it in state court or even in arbitration. It used to be, 30 to 40 years ago, the arbitration rules did not allow discovery. Lawyers started finding backdoor ways to get discovery in arbitration by subpoenaing documents to be brought to the arbitration and then asking the arbitrators to adjourn the hearing so that they can actually look at the documents, creating discovery in that way. Since then, most of the arbitration organizations’ rules now allow discovery. So it’s everywhere.

If people kept their ESI in a more organized fashion, perhaps, we would not have these costs and expenses. But, unfortunately, most people and companies may or may not be organized for business needs, but are not sufficiently organized for litigation purposes. Despite all the talk about information governance and companies needing to put in an information governance plan, I think there is a lot more talk than major activity in that area.

Hon. Frank Maas: The cost of discovery has always been a cost of doing business in this country. To a certain extent, obviously, it’s become more expensive with the advent of electronic documents and electronic discovery. Still, I don’t think corporations are inclined to go back to conducting their business with paper files. So, it’s just something we’re faced with.

“The cost of discovery has always been a cost of doing business in this country.”

Facciola: Certainly in my 17 years I saw very few cases involving what I would call the middle class of America in federal courts, except in those cases where the lawyers were serving on a contingency basis, or expected or anticipated or hoped fees would be paid by the other side because of fee-shifting statutes.

So that’s where we are, and it’s not a particularly good place. We always hope that technology will come to our rescue—and maybe it will in a magical way. That may very well be true for the big litigants who can afford it. As to everyone else, the verdict is not in, but the initial signs are not good.

It’s interesting, one of the first opinions I wrote in electronic discovery was in McPeek v. Ashcroft, which occurred back in 1997. And in it, I said we couldn’t have a system of justice in America where we were paying $300,000 for an email.

I wish I hadn’t been so prescient, but we are now paying $300,000 for email—or $86,000 for Facebook entries! And now we really have to ask ourselves some tough questions about how much longer the system can tolerate this. I don’t know.